The intersection of criminal law and immigration law

Inauguration Day in the Age of Trump

Today, the political world turns to Washington, D.C., where Donald Trump assumes the seat of power. Over the last ten weeks, communities throughout the United States have started to see the effects of his virulent campaign manifested in acts of physical and psychological violence. Migrants–who spent the last eight years living under the most heavy-handed immigration policing apparatus in modern history–have been preparing for Trump’s inauguration since then. As I watch events unfold, the need to resist Trump’s demonization of migrants while simultaneously assisting the next generation of advocates is clearer then ever. For that reason, I mark Inauguration Day with a revamped version of the vision for the future that I first published the week after the presidential election.

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Today, a man who campaigned on a platform of rhetorical violence begins to occupy the highest political office in the United States. Already the effect has been unmistakable. Incidents of hateful attacks have risen sharply. Among the millions of people who fit a description that Trump ridiculed or demonized, fear has become palpable. I have seen the tears and heard the despair. I have felt the threat seep into my daily experience.

The day after the election, I awoke feeling a sense of despair. Not because my favored candidate lost; I am no fan of Hillary Clinton. Rather, on November 9th, I grieved for a nation that embraced the worst of its devils—devils that have always been part of our fabric, devils that have never been too far from the surface, devils that are always ready to fan vitriol. I realized that the racism, xenophobia, misogyny, and homophobia that propelled Donald Trump to political prominence would soon become the centerpiece of federal policy.

As a teacher and scholar of crimmigration law, I realized that over the next four years, migrants, our families, and our communities will not simply suffer from a continuation of the nightmare of the last eight years. In the age of Trump, the destructive, heavy-handed immigration law enforcement strategy favored by the Obama Administration will be merely the foundation on which to build. If a President Trump implements what candidate Trump promised—what he continues to promise—the fear that I have heard and seen, the fear that I feel, will become nothing short of terror on overdrive.

This, I know, is exactly what many people in the United States would like. Though that certainly cannot be said of everyone who voted for Trump, it can fairly be said of key figures in his young administration: the vicious Jeff Sessions and Kris Kobach, or the white supremacist Stephen Bannon, for example. Others are waiting in the wings. The ICE union literally sued the Obama Administration because it felt that its members’ hands were tied as they tried to enforce immigration laws—this despite the well-known reality that President Obama presided over more deportations than any other president in the history of the United States. We can only imagine how ICE agents will enforce immigration laws when the constraints they complained were so onerous are lifted.

Those of us engaged with immigration law have already started to see the effects of the Trump campaign’s fiery rhetoric. For many migrants, the age of Trump doesn’t begin today. It began on November 9th. The fear rocking immigrant communities is not the anticipation of what is to come. It is the first wave of what is to come.

There is much that this cast of fear-mongers can—and very well may—do to terrorize the lives of migrants and their loved ones. They can unleash the 20,000 ICE agents and 20,000 Border Patrol agents into neighborhoods, churches, workplaces, and community gatherings. As Trump has promised, the new administration can pressure cities and counties to help identify more migrants to toss into the immigration detention and deportation pipeline. Congress can aid by tweaking statutes just such to raise the costs of protecting migrants.

An ICE unrestrained by any reasonable notion of prosecutorial discretion can return to the Bush-era tactic of engaging in flashy raids in which they create an immigration policing spectacle. Raids, after all, capture some migrants, but they force countless others to live with the constant state of fear that their next venture outdoors may be their last. And raids simultaneously say to people who don’t like the changes migrants bring that the government has heard them and is responding. Whether a Trump Administration reaches his oft-repeated goal of deporting three million migrants with criminal records, the symbolism—and the panic that will ensue—matters too.

In a Trump Administration, the federal government can throw more people into immigration prisons. Yes, President Obama has imprisoned about a half million migrants annually, including mothers and children, for doing nothing more than coming into the United States without the federal government’s permission, but that astonishing achievement can always go up. It’s just a question of money. And with Republicans in control of both houses of Congress, there would have to be a Senate filibuster to keep Republicans from pumping more money into the already massive immigration prison regime. And once there, life could be worse for imprisoned migrants. Forget holding people near major metropolitan centers. With a few months’ notice and a willing private prison contractor (and they’re all willing), it’s possible to move migrants to remote parts of Arizona, Texas, or Louisiana—far from family, friends, annoying lawyers, and pesky journalists.

In addition, Trump and his crew can do what the Obama Administration failed to prioritize: make a concerted effort to shape the immigration judge corps in their ideological mold. The immigration judges and members of the Board of Immigration Appeals (BIA), the nation’s highest administrative immigration appellate unit, are all Justice Department employees. They all work for the Attorney General. Not a single one is a member of the judiciary. And while many immigration judges resist pressures to decide cases simply for the sake of moving files off the desk, the Bush-era decision to fire the most liberal of BIA members demonstrates that immigration judges are vulnerable to political expediency.

This is nothing to say, of course, about DACA. President Obama famously chose to use the prosecutorial discretion embedded in the United States’ legal system to recognize that migrants brought to the United States without authorization as children are members of our communities. But as an act of executive grace, a President Trump is just as legally authorized to strike DACA’s death knell. I fully expect him to do so.

On the other hand, I have no idea what Trump will do about his beautiful border wall. Here is what we know: a wall already exists. There are approximately 700 miles of barrier along the United States-México border. Is there room to grow? Along a 2,000-mile border, obviously there is. But the financial and technical limitations are daunting. The wall as it currently exists has done much to result in thousands of deaths. We can expect to see that continue. All the while, I imagine that the rabid right-wing militias that have taken to patrolling the border will continue their vigilantism.

This is only a snippet of the reality we face in the coming months and years. This is the reality I am recommitted to resisting.

As a teacher, I rededicate myself to training my students in the righteousness of justice. Terrorizing families is not just, even if it happens with due process. Demonizing migrants is not just, even if it turns on the stigma of a conviction meted out by a legal proceeding. When the towering jurist Oliver Wendell Holmes wrote that “the life of the law has not been logic: it has been experience,” what he meant was that there is nothing inherently compelling about the law. The law is what the community to which legislators are accountable demand that it be. In short, the law is malleable. It will move in the direction that lawyers, judges, legislators, and activists push it. I will help my students learn the skills they need to push our nation’s moral compass toward an appreciation of our shared humanity.

As a scholar, I take seriously the responsibility to unearth the human consequences of the legal system. I take seriously the need to “look to the bottom,” as Mari Matsuda urged years ago, for guidance about where to direct my intellectual energies. I am fully aware that my position at an institution that supports the production of knowledge means that I am afforded the opportunity to “trade in ideas in their vital bearing on a wider political culture,” to borrow from bell hooks. I know that I am provided the luxury of resources most can’t imagine. This is not new. But in a historical moment when the dark clouds of xenophobia are moving from their perennial perch on the mountaintop and into the valley, I must recommit to scholarship that is engaged with the hard realities of a government ready to unleash its coercive powers.

As a member of a political community that aspires to democratic governance, I vow to push against the forces of government, business, and civil society that have embraced a politics of fear. This is not the first time that the United States has found itself pulled toward a nativist fervor. This is not the first time that the United States has been caught in a xenophobic whirlwind. This is not the first time that the United States has denied the inherent dignity of our neighbors. From our nation’s centuries-long reliance on slavery to the periodic moments of hatred directed at an ever-changing group of undesirables, we have all too often given in to our worst demons. If we are to step away from the precipice—or climb our way out—it will only happen if enough of us are willing to resist. I am. And I look forward to doing so in solidarity with other people of conscience.

We will not sit idly while our students, colleagues, families, neighbors, and we ourselves are vilified. We will not tolerate actions that devalue, marginalize, or threaten any member of our community. We will not lay down in the face of fear and anger. We will instead stand proudly and defiantly with everyone who has been tossed onto the heap of scapegoats. We will yell passionately until we are heard that our nation’s greatest fears cannot be allowed to trample on the basic dignity of our communities and the health of our planet.

To all those who have been targeted in word or deed, hear this: We stand with you.

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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